JUDGMENT 1. Question of law which crops up for consideration on a reference by the Division Bench is: Whether the circular dated 4th August, 2006 of the respondent Bank in so far as it insists on 35% pass marks in English to qualify for promotion in the case persons like the petitioner who are proficient in Hindi, is ultra vires sub- section (4) of Section 3 of the 1963 Act? 2. While referring the said question of law Division Bench raise some doubts as to correctness of the judgment in Raghvendra Prasad Gautam v. Union Bank of India 1999 (1) MPLJ 42; wherein the stipulation requiring a candidate to secure minimum marks of 35% in English to qualify written test for the purpose of promotions under the All India Service Category was upheld holding thereby that, it does not contravene Sub-section (4) of Section 3 of the Official Languages Act, 1963 (hereinafter referred to as the Act of 1963). 3. Relevant facts for proper appreciation of the issue raised, are taken from the reference order dated 8-5-2008. They are that, the petitioner is working in the respondent-Union Bank of India; wherein the promotions of Clerical Staff to the Officer Cadre are governed by the policy framed by the Management on the basis of settlement with All India Union Bank Employees' Association under Section 2(p) and Section 18(1) of the Industrial Disputes Act, 1947 read with Rule 58 of the Industrial Disputes (Control) Rules, 1957. 4. One such policy was brought in vogue vide memorandum of settlement dated 10-10-1992, circulated vide staff circulation No. 3913, dated 23-10-1992 (hereinafter shall be referred to Promotion Policy). For the sake of record pertinent it would be to note that amendments to the said policy dated 10-10-1992 were carried out in terms of settlements dated 2-2-2001, 7-12-2001, 11-7-2001, 19-2-2003, 4-11-2004 and 9-7- 2009. 5. The Promotion Policy provides for two channel system to promotion from Clerical Cadre to Officer Cadre in Junior Management Grade Scale I, viz.,- (i) State Services (Seniority-cum-merit), (ii) All India Services (Merit). 6. The criteria for selection to respective channel is stipulated in Chapter II and Chapter III of Promotion Policy, respectively. 7. The controversy, since pertains to the criteria laid down for selection in the All India Services (Merit) channel, we propose to confine ourselves to the relevant provision of Chapter III. Clause 3.2 thereof stipulates: 3.2. 6. The criteria for selection to respective channel is stipulated in Chapter II and Chapter III of Promotion Policy, respectively. 7. The controversy, since pertains to the criteria laid down for selection in the All India Services (Merit) channel, we propose to confine ourselves to the relevant provision of Chapter III. Clause 3.2 thereof stipulates: 3.2. For the vacancies identified under All India Services, all those clerical staff who apply and are eligible would be allowed to participate in the written test. The written test shall consist of the following: ----------------------------------------------------------------- Subjects Maximum Minimum Marks Qualifying Marks ----------------------------------------------------------------- (i) English 50 35% (ii) Law and Practice of 50 35% Banking (iii) Commercial Law/ 50 35% Accountancy (iv) Practical Banking 50 35% ----------------------------------------------------------------- For SC/ST candidates, the minimum qualifying marks will be 30% in each of the above subjects. Marks obtained in English will not be treated for ranking purpose. 8. Thus, under the promotion policy the marks obtained in English though is not applicable for ranking purpose, but the stipulation of 35% minimum qualifying marks has a catalytic effect. Because, but for this clerical staff obtaining less than 35% marks in English and have higher marks in other subjects could get berth in the provisional select list. 9. This, let to raising of the grievance, that same being in contravention to the provisions of Sub-section (4) of Section 3 of the Act of 1963 cannot be allowed to be retained in the Promotion Policy; vide Writ Petition No. 2529 of 1996. Wherein, the promotion policy was challenged also in the backdrop of the Constitutional provisions enshrined under Articles 343 and 344. 10. The Division Bench vide its order dated 4-8-1998, observing that, in absence of any Constitutional provision, the promotion policy laying down minimum qualifying marks in English does not cause any violence to any of the Constitutional provisions. 11. Furthermore, on the bedrock of the provisions under Sub-section (4) of Section 3 of the Act of 1963, it was observed by Their Lordships that the said provision does not prohibit, English to be regarded as a compulsory subject in any Departmental Examination or in any examination and accordingly negatived the proposition that the petitioner therein was put to any disadvantage, because of not able to score the minimum pass marks in English. [Please also see : Banking Service Recruitment Board, Madras v. V. Ramalingam and Ors. [Please also see : Banking Service Recruitment Board, Madras v. V. Ramalingam and Ors. : (1998) 8 SCC 523 , wherein it was observed by Their Lordships: 5. ...There is nothing irregular about fixing different cut-off marks for each paper. The cut-off marks fixed will depend upon the examining body's view of the importance of the subject for the post in question. It may well fix higher cut-off marks for subjects which may have greater relevance than other subjects which may have relevance but not to the same extent. Basically, it is for the examining body to fix cut-off marks. 12. The judgment in Writ Petition No. 2529/1996 Raghvendra Prasad Gautam v. Union Bank of India and Ors. was, lateron followed by the another Division Bench of this Court in W.P. No. 3771/05 between the same party decided on 30-8-2005. 13. The petitioner thereafter again appeared in written test for selection under All India Service (Merit) channel, held on 23-1-1996, whereon he was declared unsuccessful because of obtaining less than 35% marks in English. Subsequent thereafter, the respondents vide its Staff Circular No. 5292, dated 4- 8-2006 initiated proceedings to fill up 900 vacancies under State Services Channel and 600 vacant posts under All India Services channel. For All India Services channel the selection criteria remained as per the Promotion Policy, i.e., achieving minimum 35% in all subject including English. This gave rise to another round of litigation forming subject-matter of Writ Petition No. 14088/2006 (S); wherefrom emanates the present reference. 14. Though by order dated 8-5-2008, the Division Bench has declined to reopen the question of promotion of petitioner pursuant to the circular dated 23-10-1992; however, circular dated 4-8-2006 has been taken to have given fresh cause, whereupon, the earlier judgment has been doubted. 15. Before dwelling upon the question of law referred for adjudication we propose to clarify that, though in the reference order dated 8-5-2008 the circular dated 4-8-2006 has been stated to be a fresh circular regarding promotion policy. However, a close look at the circular would reveal that, the same proposes to undertake promotion process from the clerical to officer cadre (Junior Management Grade/Scale I) in pursuance to the Promotion Policy for Clerical Staff for promotion to Official Cadre circulated vide Staff Circular No. 3913, dated 23-10-1992, as amended from time. In other words, it does not lay down any fresh promotion policy. In other words, it does not lay down any fresh promotion policy. We mention this to straighten the record. 16. However, since doubt is raised over an earlier Division Bench judgment, we dwell upon to answer the reference. 17. The Official Languages Act, 1963 owes its existence to the Constitutional provisions contained under Articles 343 and 344 of the Constitution of India. Article 343 provides for: 343. Official language of the Union.- (1) The official language of the Union shall be Hindi in Devanagiri Script. The form of numerals to be used for the official purposes of the Union shall, be the international form of Indian numerals. (2) Notwithstanding anything in Clause (1), for a period of fifteen years from the commencement of this Constitution, the English language shall continue to be used for all the official purposes of the Union for which it was being used immediately before such commencement: Provided that the President may, during the said period, by order authorise the use of the Hindi language in addition to the English language and of the Devanagiri form of numerals in addition to the international form of Indian numerals for any of the official purposes of the Union. (3) Notwithstanding anything in this article, Parliament may by law provide for the use, after the said period of fifteen years, of: (a) the English language, or (b) the Devanagiri form of numerals, for such purposes as may be specified in the law. Article 344 stipulates: 344. Commission and Committee of Parliament on official language.- (1) The President shall, at the expiration of five years from the commencement of this Constitution and thereafter at the expiration of ten years from such commencement, by order constitute a Commission which shall consist of a Chairman and such other members representing the different languages specified in the Eighth Schedule as the President may appoint, and the order shall define the procedure to be followed by the Commission. (2) It shall be the duty of the Commission to make recommendations to the President as to: (a) the progressive use of the Hindi language for the official purposes of the Union; (b) restrictions on the use of the English language for all or any of the official purposes of the Union; (c) the language to be used for all or any of the purposes mentioned in Article 348; (d) the form of numerals to be used for any one or more specified purposes of the Union; (e) any other matter referred to the Commission by the President as communication between the Union and a State or between one State and another and their use. (3) In making their recommendations under Clause (2), the Commission shall have due regard to the industrial, cultural and scientific advancement of India, and the just claims and the interests of persons belonging to the non-Hindi speaking areas in regard to the public services. (4) There shall be constituted a Committee consisting of thirty members, of whom twenty shall be members of the House of the People and ten shall be members of the Council of States to be elected respectively by the members of the House of the People and the members of the Council of States in accordance with the system of proportional representation by means of the single transferable vote. (5) It shall be the duty of the Committee to examine the recommendations of the Commission constituted under Clause (1) and to report to the President their opinion thereon. (6) Notwithstanding anything in Article 343, the President may, after consideration of the report referred to in Clause (5), issue directions in accordance with the whole or any part of that report. 18. The Official Languages Act, 1963 was enacted by the Parliament in exercise of its power under Clause (3) of Article 343 of the Constitution of India to provide for the languages which may be used for the official purposes of the Union, for transaction of business in Parliament, for Central and State Acts. 19. Section 3 of the Act of 1963 made a provision for continuance of English language for official purposes of the Union and for use in Parliament. 20. Section 3 was substituted by Section 2 of the Act of 1968 with effect from 8-1-1968. 19. Section 3 of the Act of 1963 made a provision for continuance of English language for official purposes of the Union and for use in Parliament. 20. Section 3 was substituted by Section 2 of the Act of 1968 with effect from 8-1-1968. The amendment led to introduction of Sub-section (4) in the following terms: (4) Without prejudice to the provision of Sub-section (1) or Sub-section (2) or Sub-section (3) the Central Government may, by rules made under Section 8, provide for the language or languages to be used for the official purpose of the Union including the working of any Ministry, Department, Section or Office, and in making such rules, due consideration shall be given to the quick and efficient disposal of the official business and the interests of the general public and in particular, the rules so made shall ensure that persons serving in connection with the affairs of the Union and having proficiency either in Hindi or in the English language may function effectively and that they are not placed at a disadvantage on the ground that they do not have proficiency in both the languages. 21. The first impression which one gets from a plain reading of Sub-section (4) of Section 3 of the Act of 1963 is that, it is the working knowledge of either of the language, i.e., Hindi and English which the framer aims at to achieve and when provision is seen microscopically, it is observed that, it does not prohibit the use of either language for official purpose or in the working of any Ministry, Department, Section or Office and in making such rules. 22. This can be analysed from another angle. Sub-section (4) of Section 3 of the Act of 1963 starts with the expression "without prejudice to the provisions of Sub-section (1) or Sub-section (2) or Sub-section (3)". Meaning thereby, that the action under Sub-section (4) must be in consonance to and not inconsistent with the provisions contained under Sub-section (1), Sub-section (2) or Sub-section (3). This is how the expression "without prejudice" has been intercepted. (For an authority please see A.P. State Financial Corporation v. M/s. GAR Re- Rolling Mills : AIR 1994 SC 2151 .) 23. Meaning thereby, that the action under Sub-section (4) must be in consonance to and not inconsistent with the provisions contained under Sub-section (1), Sub-section (2) or Sub-section (3). This is how the expression "without prejudice" has been intercepted. (For an authority please see A.P. State Financial Corporation v. M/s. GAR Re- Rolling Mills : AIR 1994 SC 2151 .) 23. Sub-section (1), Sub-section (2) and Sub-section (3) of Section 3 provides for: (1) Notwithstanding the expiration of the period of fifteen years from the commencement of the Constitution, the English language may, as from the appointed day, continue to be used, in addition to Hindi,- (a) for all official purposes of the Union for which it 1 being used immediately before that day; and (b) for the transaction of business in Parliament : Provided that the English language shall be used for purposes of communication between the Union and a State which has not adopted Hindi as its official language: Provided further that where Hindi is used for purposes of communication between one State which has adopted Hindi as its official language and another State which has not adopted Hindi as its official language, such communication in Hindi shall be accompanied by a translation of the same in English language: Provided also that nothing in this sub-section shall be construed as preventing a State which has not adopted Hindi as its official language from using Hindi for purposes of communication with the Union or with a State which has adopted Hindi as its official language, or by agreement with any other State, and in such a case, it shall not be obligator to use the English language for purposes of communication with that State. (2) Notwithstanding anything contained in Sub-section (1) where Hindi or the English language is used for purposes of communication: (i) between one Ministry or Department or office of the Central Government and another; (ii) between one Ministry or Department or office of the Central Government and any corporation or company owned or controlled by the Central Government or any office thereof; (iii) between any corporation or company owned or controlled by the Central Government or any office thereof and another; a translation of such communication in the English language or, as the case may be, in Hindi shall also be provided till such date as the staff of the concerned Ministry, Department, office or corporation or company aforesaid have acquired a working knowledge of Hindi. (3) Notwithstanding anything contained in Sub-section (1) both Hindi and the English languages shall be used for: (i) resolutions, general orders, rules, notifications, administrative or other reports or press communiques issued or made by the Central Government or by a Ministry, Department or office thereof or by a corporation or company owned or controlled by the Central Government or by any office of such corporation or company; (ii) administrative and other reports and official papers laid before a House or the House of Parliament; (iii) contracts and agreements executed, and licences, permits, notices and forms of tender issued by or on behalf of the Central Government or any Ministry, Department or office thereof or by a corporation or company owned or controlled by the Central Government or by any office of such corporation or company. 24. Thus, in effect these provisions do not bar the use of English language for official purpose. Consequently, we also do not perceive any illegality in the action of the respondent prescribing English language as one of the subjects in examination for selection in the All India (Merit) channel. 25. The question which lurks and still remains to be answered is whether by fixing a minimum cut-off marks to be obtained in English would in any manner be treated as putting the persons at a "disadvantage on the ground that they do not have proficiency in both the languages". 26. Though repetitive, but worth it would be, for an answer, to have a close look at the provision, i.e., Sub-section (4) of Section 3. 26. Though repetitive, but worth it would be, for an answer, to have a close look at the provision, i.e., Sub-section (4) of Section 3. This provision empowers the Central Government to frame rules under Section 8 providing for the language or languages to be used for the official purpose of the Union including the working of any Ministry, Department, Section or Office. And while making such rules due consideration shall be given to the quick and efficient disposal of the official business and the interests of the general public. The provision further provides that the Central Government while making rules shall ensure that persons serving in connection with the affairs of the Union and having proficiency either in Hindi or in the English language may function effectively and that they are not placed at a disadvantage on the ground that they do not have proficiency in both the languages. The provision, therefore, aims at the functional knowledge of either of the language. 27. Though much emphasis has been laid by the petitioner on the expression "efficiency" and "proficiency" to bring home the contention that, prescribing a minimum cut-off marks in English would lead to a disadvantage if a person is not proficient in either language. 28. This aspect of the matter can be examined in the context of the fact that the language is the means of communication and the applicability of it would depend upon the efficient knowledge of a language. Proficiency whereof is not required. 29. For, an expression "efficient" means 'capable (able) to perform duties well' or 'producing a desired or satisfactory result'. The expression "efficiency" would therefore mean 'state or quality of being efficient. 30. The 'proficient' on the other hand means 'skilled', 'expert'. And the expression "proficiency" is the 'quality of state of being proficient; advance in the acquisition of any art, science, or knowledge, progression in knowledge; improvement; adeptness as, to acquire proficiency in music', [reference : The American Heritage Dictionary of the English Language (R), Fourth Edition.] 31. Therefore, when 'sub-section' (4) of Section 3 is examined in the context of above aspect, what it aims for, that, wanting of a proficiency in either of the language should not be treated as a disadvantage. Therefore, when 'sub-section' (4) of Section 3 is examined in the context of above aspect, what it aims for, that, wanting of a proficiency in either of the language should not be treated as a disadvantage. And when conversely applied would mean that, the capability to understand and have a working knowledge of either of the language is that what is aimed at for by the provision under consideration. 32. Thus, when it is expected of a person to have a minimum 35% in English to be eligible for being placed in select list is not expecting him of being proficient in the language, but must be efficient, so that he has a workable knowledge of English for an All India Service. 33. In State of U.P. v. Dr. K.U. Ansari : (2002) 1 SCC 616 , it was observed by Their Lordships: 10. ...In the expression "efficiency" are included all relevant matters necessary for discharging his duties efficiently and satisfactorily. In the case of a teacher, particularly a teacher in medical college, it is absolutely necessary that he keeps abreast of all developments in the field of the medical science of his specialisation and he can achieve this better if he is engaged in research work. The manner in which he carries out the research and assessment of the results he obtains are matters of scrutiny by experts; but it cannot be said that a teacher in medical college is not expected to do any research. In order to teach his students properly the teacher has to maintain a high degree of proficiency in the subject. 34. Having thus considered we are of the opinion that the stipulation as contained in the Promotion Policy dated 10-10-1992 for clerical staff for promotion to officer cadre, circulated vide staff circular No. 3913, dated 23-10-1992, and as amended from time to time, laying down the criteria of obtaining minimum 35% marks in English in written examination for being qualified to be placed on the provisional select list, does not violate the mandate of Sub-section (4) of Section 3 of the Official Languages Act, 1963. 35. 35. We accordingly, answer the question of law referred to us as to that the circular dated 4th August, 2006 of the respondent Bank in so far as it insists on 35% pass marks in English to qualify for promotion in the case of persons like the petitioner who are proficient in Hindi, is not ultra vires Sub-section (4) of Section 3 of the 1963 Act. 36. Before parting, we propose to place on record our appreciation for able assistance by the petitioner and respective Counsels and more particularly of Shri Rajendra Tiwari, learned Senior Counsel, who readily and proficiently assisted as friend of the Court. 37. Let the matter now be listed before Single Bench for its decision on merit.